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Speech for Me, but Not for Thee?

Unlike Bruce Cain and Richard Hasen, Nikki Willoughby does not offer a serious exploration of campaign finance issues. Instead she offers what amounts to a rant, heavy on “us vs. them” and light on analysis and knowledge of constitutional doctrine. Nonetheless, her essay merits close attention.

Consider first Willoughby’s proposition that “Anyone who has a problem [with mandating disclosure of independent expenditures] probably has something to hide.”

I wonder what Willoughby thinks about the Fifth Amendment’s protection against self-incrimination or the constitutional premise that a person is considered innocent until proven guilty. Not much, apparently.

Then we are told that “good government groups like Common Cause are indignant.” Many campaign finance “reformers” focus on people’s motives rather than the content of their speech. “Reformers” have pure motives (they belong to “good government” groups like Common Cause) while anyone who disagrees with them has bad motives (no doubt they belong to bad government groups). Ascribing malign motives to anyone who disagrees suggests there can be no legitimate disagreement with the “reform agenda.” Disagreement, after all, is just a cover for corruption and probable criminal activity. I mean, really, why tolerate the enemies of democracy?

This kind of argument commits the genetic fallacy, the idea that we can conclude the truth of a statement by knowing its origins. It is the same fallacy that in part rationalizes mandated disclosure: if we know who paid for an ad, we know whether it is in the public interest (good!) or private interest (bad!).

Apart from fallacious reasoning, Willoughby’s claim is clearly false. Many people have problems with mandated disclosure because of its consequences for them or for freedom of speech. Demonizing the motives of those who disagree does not change that fact. Of course, those who worry about the consequences of disclosure may be wrong. But that is an assertion about the content of their speech, not about its origins.

We are then told that the most recent election “was sold to the highest bidder, and it’s the purchasers’ interests that will prevail over your own.” Willoughby offers no evidence for this assertion; she seems unaware that evidence might be needed. Of course, if you have strong prior beliefs that the world works in one way or another, you don’t need evidence for your assertions. I might add that over the years many political scientists have tried to document the influence of money on politics and do not have much to show for it (independent expenditures have not been as extensively studied). Perhaps some updating of the Common Cause worldview would be order. But no, the “reformers’” faith that money determines all remains as strong as it was in John Gardner’s time.

This selling to the highest bidder business also prompted a question for me. The 2008 election was marked by unprecedented fundraising and spending, not least by the current president, the greatest fundraiser in American history. Would Willoughby agree that the Obama administration’s agenda and activities were “sold to the highest bidder?” If not, why not? Does money only corrupt elections when Republicans and conservatives do well? If so, isn’t “campaign finance reform” just a stalking horse for partisan (Democratic) and ideological (liberal) interests?

Willoughby tells us that Citizens United means “that campaign donations are the equivalent of free speech.” She may know that Citizens United did not concern campaign donations. It concerned spending on speech by organizations taking the corporate form. In other words, money translated directly into speech, and the question was whether Congress had the power to prohibit such spending (and thus, such speech). The Court concluded the First Amendment precluded such prior restraint of speech.

Willoughby notes that the Court also approved of disclosure in Citizens United and other decisions. That is true, but it should not be taken to mean that the Court would approve the sort of punitive disclosure Willoughby may have in mind. The discussion of disclosure in Citizens United is muddled in light of earlier decisions. Overall, the Court seems to think that disclosure serves one set of purposes regarding contributions and a single purpose (voter education) regarding independent expenditures. Bruce Cain’s proposal on disclosure recognizes and builds on this distinction.

Richard Hasen notes that he has no wish to prevent the speech of others. At best, Willoughby is indifferent toward the speech of others. At several places, she says that if mandating disclosure chills speech, so what? The First Amendment, as Anthony Lewis’s recent book reminds us, requires “freedom for the thought that we hate.” Willoughby’s indifference to silencing those with whom she disagrees undermines the cultural foundation of the First Amendment.

Consider also her statement that “as Americans, we’ve agreed that some speech is too costly to be considered free. Slander, libel, and speech that poses an imminent danger of violence are all punishable. Why shouldn’t speech that poses an imminent threat to our democracy also be regulated?”

Willoughby also indicates another means to the same end. If, as she asserts, the money that funds speech is commerce, campaign finance regulations implicate not the First Amendment but rather the Commerce Clause of Article I. Under the latter clause, the Court has granted Congress plenary power to regulate commerce. Hence, Congress’ power to regulate the money funding speech would also be plenary.

The Supreme Court has said that some forms of expression do not enjoy First Amendment protection: libel, incitement, child pornography, and obscenity may be punished or prohibited. Similarly, the Court said early in American history that regulation of commerce may include its prohibition. Willoughby suggests that speech funded by corporate organizations should also be exempt from First Amendment protections because it “poses an imminent threat to our democracy.” In a word, the government should be free to regulate political speech out of existence.

Think of examples of libel, incitement, and child porn. Now consider a recent example of corporate-funded speech sponsored by a group widely decried by activists. American Crossroads, a group affiliated with Karl Rove, funded an ad criticizing Chet Edwards, a Democratic Congressman from Texas. You can see the ad here. It argues that the stimulus failed, that millions are left unemployed (citing the unemployment rate in Texas) and that Edwards has supported massive new taxes, spending, and debt. The ad concludes: “Working for Obama doesn’t work for Texas.”

What does this political speech about Chet Edwards have in common with libel, incitement, and child porn? The arguments in the ad did pose an imminent threat to Chet Edwards’ political career; he lost in 2010 in part because of his partisan tie to an unpopular president. But how does the ad threaten “our democracy”? It makes a case against Chet Edwards. The voters can accept or reject that case. If the funding of such political speech is exempt from First Amendment protection, Congress may prohibit such speech by prohibiting its funding. Such censorship of political speech would be great for members of Congress who are criticized during a re-election campaign. It would not be so good for the rest of us.

Cato Unbound has shown the Janus face of “campaign finance reform.” Richard Hasen knows his subject, offers subtle analysis, and provokes thought in those who disagree with him. Willoughby denounces the enemy, who, being the enemy, has no rights any “reformer” is bound to respect. I suspect that Willoughby, not Hasen, will animate the campaign finance laws of the future. For that reason among others “campaign finance reform” remains a profound and enduring threat to the American republic.

Also from This Issue

Bruce Cain’s lead essay calls for a compromise on campaign finance disclosure. We want many things from our election law, he notes – the freedom to speak, a process that both is and appears to be just, a well-informed electorate, and protection for the holders of controversial opinions. Cain suggests semi-disclosure as a good way to get most of what we want. He advocates “the full reporting but only partial disclosure of campaign donor information.” Semi-disclosure of the type Cain suggests is already used in the release of census data, where individual privacy is respected even while demographers gain valuable information from the aggregate. Giving voters information about campaign contributions without giving them donors’ names would allow voters to consider the nature of a candidate’s or a measure’s supporters while shielding those supporters from personal attack, Cain argues.

In his response essay, John Samples notes that disclosure discourages people from participating in the political process. When someone decides not to do something, that decision is all but invisible to researchers who might wish to study it. Disclosure also shifts attention from the content of speech to the identity of the speaker, which is not necessarily the best basis for decisionmaking. The paternalism of disclosure is also a problem, as he sees it: the government appears to be trying to keep you from hurting yourself, even if you decline to fulfill your responsibilities as a citizen by examining the issues on their merits.

In her response essay, Nikki Willoughby argues that anyone who opposes full disclosure of donors’ identities probably has something to hide. Spending money isn’t speech; it’s a commercial transaction, and thus regulable under our law. Moreover, even if campaign finance were a matter of speech, some speech always has been subject to regulation, including slander, libel, and speech that incites imminent acts of violence. We should likewise regulate speech that imminently threatens our democracy, by mandating that sources of such speech are disclosed. Secrecy destroys trust in government, driving citizens away from political participation. Openness wouldn’t chill participation – openness would encourage it.

Richard Hasen offers some objections to Cain’s case for semi-disclosure. Cain’s plan doesn’t seem to appreciate sufficiently the benefits of disclosure; whereas public disclosure and analysis by independent watchdog groups can provide fairly sophisticated monitoring of campaign finance data, we shouldn’t expect the government to provide all the details about patterns of campaign contributions that we might desire. Further, he finds little benefit to demographic data about campaign finance shorn of names and public identities of major contributors.

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